Federal Judiciary

One challenge route closed to detainees

By Akin Gump Supreme Court Practice Group

The D.C. Circuit Court on Friday closed one civilian court channel that Guantanamo Bay detainees had used to challenge their confinement, shutting down perhaps 175 pending cases in that court.  The three judges on the panel were unanimous in accepting the government’s argument that the review process created under the Detainee Treatment Act of 2005 has been scuttled. The ruling, however, may not be limited in its impact to that process, because the panel’s reasoning could narrow the rights of detainees in the remaining channel for challenges — the 200 or so habeas cases working through the U.S. District Courts.  The opinion, on rehearing the case of Bismullah, et al., v. Gates (06-1197), can be found here.

Circuit Judge Douglas H. Ginsburg’s opinion for the panel made clear that the court felt obliged to nullify the DTA cases as a consequence of the Supreme Court’s decision last June, giving Guantanamo prisoners a constitutional right to test their confinement by pursuing habeas claims in District Court. In Boumediene v. Bush, the Justices struck down a part of the DTA law that had stripped the federal courts of any jurisdiction to hear Guantanamo habeas claims.

When that court-stripping provision fell, the Circuit Court concluded, so did all of the DTA’s review process.  That process was created by Congress to allow detainees to test the “enemy combatant” rulings made by the Pentagon’s “Combatant Status Review Tribunals” (or, CSRTs). An “enemy combatant” finding is necessary to keep a prisoner at Guantanamo.

“In this case,” Ginsburg wrote, “there can be no doubt: Both the text of the relevant provisions and the enactment of successive jurisdiction-stripping provisions demonstrate clearly that the Congress would not in the DTA have given this court jurisdiction to review CSRT determinations had it known its attempt to remove the courts’ jurisdiction over habeas petitions would fail.”

In Boumediene, the Supreme Court had said that the separate DTA review scheme “remains intact.” But the Circuit Court said the Justices did not have before them the issue of whether the two parts of the 2005 Act — DTA review by the Circuit Court, denial of habeas review in District Courts — could co-exist.  The Circuit Court said the two could not be separated — that is, the restoration of habeas put an end to DTA review.  The Supreme Court, it said, “did not address the issue of severability and thereby left it to this court to resolve in the first instance in light of” Boumediene.

Congress, Ginsburg said, wanted the DTA process to be the sole — and a limited — means for detainees to contest their ongoing confinement.  The lawmakers “understood review under DTA to be a substitute for and not a supplement to habeas corpus and hence the exclusive means by which a detainee could contest the legality of his detention in a court….Therefore, DTA review, by opening an avenue of relief alongside the writ of habeas corpus, can no longer function in a manner consistent with the intent of Congress.”

Full post as published by SCOTUSBLOG on January 09, 2009 (boomark / email).